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Can an undocumented Immigrant make a Personal Injury Claim?

Posted by Jason Baril | Apr 14, 2021 | 0 Comments

YES, An Undocumented Immigrant CAN Make A Personal Injury Claim and they should.

The American legal system when people are injured, they may be entitled to compensation for their injuries. In order to actually recover there must be:

1. Liability- The at fault driver must be negligent by the threshold necessary for each individual state. Some states require no negligence assessed against the Plaintiff, other states the Plaintiff can be 99% at fault and many states use some form of comparative or modified comparative fault method for establishing recovery rules. As one can see negligence laws vary significantly.

2. Damages-  Damages include compensation for past and future medical expenses, including doctor's visits, emergency room fees, prescription costs, transportation costs, physical therapy and the like. All damages must be reasonable, necessary and causally related to the wreck.

3. Collectability- Did the person have insurance? How much insurance? If the at fault driver has insurance one can look to the state minimum policies to determine the least amount of coverage. It is also important to look for uninsured/underinsured policies.

How Does My Immigration Status Affect My Personal Injury Claim?

When someone is an undocumented immigrant in the United States, the fact they are not a legal resident or U.S. citizen is of not part of any analysis. Immigration status is not considered a factor when determining the right to obtain a personal injury monetary settlement from another party here.

Wage Loss Recovery For Undocumented Immigrants

Lost wages” is a blanket term used in the legal community to refer to both the wages someone didn't earn while they were healing from an injury, and the wages someone won't earn in the future because of a long term (or permanent) disability. Past lost wages are calculated by reviewing the number of hours an injured person would have worked if they were not injured. In some cases, this can also include overtime hours, if that is reasonable under the specific circumstances of the case. That means the the person was working overtime hours or every year in April they work overtime because of tax season.

Future lost wages are calculated by determining an amount of wages one is “reasonably certain to lose in the future” because of the injury. This calculation includes wage loss caused by an inability to work, or an inability to continue working in one's profession and to receive future lost wages an injured person must have an impairment rating from the injuries that are a direct and proximate cause of the wreck in question.

Rodriguez v. Kline

For undocumented persons, a different calculation is used by the court to determine the past and future wage loss. Undocumented immigrats are entitled to lost wages but they are calculated differently than they are for legal residents and U.S. citizens. In the California case of Rodriguez v. Kline, the court held if a person is not legally allowed to work in the United States, using their illegally obtained wages as a measure of wage loss compensation is improper.  Frequently, this holding in a much smaller recovery than if the worker were allowed to collect based on his or her earnings in the United States. Therefore, if you are an undocumented immigrant who has been injured through no fault of your own, it is important to hire a personal injury attorneywho can work to get you the most money for your injuries.

Can I Be Deported For Making A Personal Injury Claim?

Undocumented immigrants and others with an uncertain immigration status often hesitate to make a personal injury claim because they fear deportation if a claim is made and it can not be threatened in an attempted to stop an undocumented immigrant from pursuing recovery. Personal injury claims are designed to compensate injury victims regardless of immigration status. Courts treat all injured parties the same when it comes to receiving compensation for:

  • Medical bills
  • Rehabilitation bills
  • Medications
  • Therapies
  • X-Rays
  • Home health care
  • Medically necessary equipment
  • Pain and suffering

Status does not matter, instead the negligence rules of each state are what matters and apply equally to everyone. If you are injured consult a personal injury attorney and fight to get every penny you deserve.

About the Author

Jason Baril

Jason has spent his entire career fight for those who need help and often times do not get the help they need. In addition to Immigration Law, Jason has worked on Criminal, Social Security Disability and Personal Injury cases which gives him diverse experience on many legal issues. 


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